The online journal of a crusty, longwinded trial lawyer, bemused observer of politics, and internet dilettante

Monday, May 10, 2010

To influence SCOTUS, why would you turn to a law school dean?

I commend to your attention, and associate myself with the views expressed in, this post by Wisconsin Law Prof. Ann Althouse. Key bit (emphasis hers):

It seems that Kagan has been very good at influencing professors and that Obama read that (and his own direct contact with her) to mean that she'll be good at influencing Supreme Court Justices. That may be a poor inference. I think a law school dean is engaged in more of a social enterprise in bringing groups of people together. But the Justices — as the oral argument shows — deal in much more technical legal arguments. They may bend liberal or conservative, but the arguments need to be there.

But read the whole thing. You won't want to miss the info about Solicitor General Kagan's handful of appearances before the SCOTUS as an advocate.

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Comments

I don't accept the premise that any Supreme Court Justice is open to being influenced by another Justice... as that would presume the Justices come to cases with an open mind rather than, as I see it, with their mind made up as to how they're going to vote.

At best, they're open to suggestions on how they can best rationalize the vote they've already decided to make ('Hey, Clarence, I know you want to vote against Gore, how about we use the equal opportunity argument?' ... or 'David, I know you want to invalidate the Texas anti-sodomy law, what do you think about referring to 'public opinion has changed' as the rationale?')

(2)A.W. made the following comment | May 11, 2010 9:15:26 AM | Permalink

well, since that is pretty much what i have been saying since she was nominated, I of course agree.

Dear Mr. Dyer: I think you linked to the wrong Althouse post. Althouse linked to this one which addresses the reasons why EK may have been a poor Solicitor General. EK is just an old style Prussian staff officer: lording it over those unfortunate enough to be her subordinates, politely contemptuous of those others (but not EK) consider her peers, and sucking up outrageously to bosses/power figures. The interview Charlie Rose conducted last night with Sean Wilentz and Walter Dellinger, two mountebanks and quacks in their prime, well able to appreciate quality toadying, showed this side of EK as seen by her teachers and colleagues, well.

The notion of influence isn't mistaken. Justice Charles Whitaker, an Eisenhower appointee, is the classic example, living up to Lloyd George's description of Lord Derby: like a pillow, bearing the impress of the last man who sat on him. But Whitaker was one of the worst Justices ever, weak and far out of his depth. Neither Whitakerian aspect is true of the current collection of egomaniacs. Kennedy may appear weak given his vacillating jurisprudence, but he's just maximizing his power, and getting far more attention than his character or intellect would otherwise justify. It will vanish to the accompaniments of bootprints to his rump, infra, should the Court's 4-4 split vanish, but what the hell does Tony care about tomorrow? His whole jurisprudence is one long "to hell with consequences."

I think it's long been established by Chief Justices Hughes and Rehnquist and Justice Douglas that rational argument plays precious little role in Court decisions, while rationalizing arguments, provide all the facade that's needed to con readers of decisions. So what's with EK's nomination? How will she "influence" old Tony? The answer is easy: it doesn't lie in psychoanalysis of EK, but in The One's Justice Department. These are the same masterminds that howled to try KSM in New York, close Gitmo within a year, reneged on the default judgment against the Black Panther goons in Philly, and in general have proved over and over that they cannot pass a rabies nor an IQ test.

Given that, it seems to me that they commissioned a psychological profile of Tony from the wizards at the CIA, you know, the ones who hired Valerie Plame Wilson. This profile suggested that Tony was susceptible to a torrid affair with EK. Hence, The One's nomination of her, and the White House's frenzied denial that EK is a lesbian. They fear that Tony will get wise that he is being set up for a lurid tryst that the press won't cover just as they didn't cover John Edwards and Rielle Hunter. No doubt The One expects EK to show up for her swearing in dressed in a slinky teddy, guzzling champagne out of one of her slippers, clenching a rose between her teeth. Tony doesn't stand a chance against such influence...

Meanwhile the reality, that EK is a standard issue liberal bigot with lots of intelligence, and not a scrap of wisdom, always on the make, rising and rising, being careful not to leave much of a paper trail, but in the trail she does leave, groveling that she luvs strong Presidents, trusting that her gayness and femaleness will insulate her from attacks by the Left as well as the Right. Elections do have consequences, and here comes another installment of the bill most of us will have to pay. Not EK, though.

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